The Issue Whether Respondent's dental laboratory license should be suspended, revoked or otherwise disciplined.
Findings Of Fact Respondent, W.P. Dental Lab, is a licensed dental laboratory in the State of Florida, holding license number DL 000936. Wendell Cook is co-owner of and operates W.P. Dental Lab. The lab is located in the backyard of Mr. Cook's residence, at 457 Cain Street, Crestview, Florida. On November 8, 1989, and February 8, 1990, the lab was inspected by DPR Investigator, Charles Wheelahan. Joan Ziel, Petitioner's expert on laboratory sanitation, accompanied Mr. Wheelahan on the February 8th inspection. The laboratory was also inspected by Doug Sims of HRS, Okaloosa County Health Unit, on November 14, 1989, and November 27, 1990. Doug Sims is also an expert in laboratory sanitation. The inspections of November 8 and 14, 1989, and February 8, 1990, revealed the following: The dental lab is operated out of a small dilapidated travel trailer. Window panes located on the front of the trailer were broken and all the window screens needed replacement. Insects and dust have ready access to the interior of the trailer. The linoleum flooring inside the trailer was not secured firmly to the floor and there were some holes in the floor. Adjacent to the trailer is Mr. Cook's aviary containing several exotic birds. The aviary is within 5 to 10 feet of the laboratory's entrance. Additionally, a large dog was allowed to run freely in the backyard where the laboratory is located. The presence of these animals adds to the already dusty conditions of the backyard. Water is supplied to the laboratory by an ordinary garden hose. There is no potable water connection and no backflow preventor. There was no running hot water in the facility. The trailer has only one sink. The sink is used for everything including sanitation and waste disposal. Waste water emptied onto the ground and was not connected to a sewer. There are no bathroom facilities in the trailer. There are bathroom facilities located in Mr. Cook's house. There was a large accumulation of trash and rubbish around the outside of the lab. Many insect and rodent harborages were present. There is no exhaust mechanism for the volume of dust particles generated by the dental lab work. The counter, chair, and floor surfaces in the facility were covered with a thick coating of bacteria harboring dust. Sterilization, sanitation, and disinfectant procedures appeared to be impossible within the trailer's environment, and Dental lab equipment was outdated, dirty, and rusty. The lack of a bathroom facility and the existence of only one sink create a condition in which contaminated items cannot be disposed of separate from uncontaminated items. Additionally, the lack of a bathroom facility and the existence of only one sink makes it impossible for an operator to cleanse either himself or his equipment after touching contaminated items and before handling uncontaminated items. Contamination control is important in the dental laboratory setting because the technician handles impressions form dental patients which have residue from the patient's saliva on them. The potential for transmission of disease is apparent. The inadequate exhaust mechanism allows bacteria-harboring dust to coat everything in the facility. Therefore, appropriate sterilization, sanitation and disinfectant procedures are almost impossible without an exhaust system that will handle the dust particles generated by the dental equipment. Additionally, the proximity of the bird aviary and dog creates a condition where bird and dog dander, mites, and bird droppings can easily access the trailer environment when adequate screening is not present. The possibility that airborne contaminants and contaminants in the dust can ultimately come in contact with a patient if proper sterile procedures or sanitary or disinfectant procedures are not followed exists and poses a real danger to the public. The only methods of sterilization used by Mr. Cook in his lab work consists of boiling the dental product in a pressure cooker and then placing the product in a plastic bag with an amount of listerine. Such sterilization procedures are not considered adequate infection control methods. The failure to use proper disinfectants and sterilization procedures constitutes a health hazard since such disinfectants are the only method which eliminates bacteria and prevents the potential for bacteria to be transmitted to someone else. The inspections of W.P. Dental Lab in November, 1989, and February, 1990, clearly demonstrated that W. P. Dental Lab was not maintained in a sanitary condition. An inspection of W.P. Dental Lab on November 27, 1990, one year after the first inspection, revealed that Mr. Cook had made some minor repairs to the trailer. However, the facility still falls significantly below the common standard for reasonable sanitation. Among other things, there was still no hot water under pressure, the boiler, stove and pressure cooker were all in need of cleaning, there was still no restroom facility, several pieces of the dental equipment were rusty making cleaning difficult and the vinyl flooring had been stapled together making cleaning very difficult. Additionally, the presence of animals in the yard continues to draw flies which are a carrier of bacteria. Also, numerous brushes and other sanding devices used in dental laboratory work were caked with powder. A view of the laboratory at the conclusion of the hearing demonstrated that the surface areas of the lab had been cleaned. Grit could still be felt on the surfaces of the counter tops and there were obvious signs of mildew and a distinct musty odor. In essence, the laboratory was clean, but not sanitary. Of greatest concern in this case, was the obvious lack of knowledge on Mr. Cook's part of current methods of sanitation including the appropriate products, equipment and procedures. Such products and equipment are presently available and in use in the community. Because of this lack of knowledge, the laboratory poses a potentially dangerous health hazard to the public with no assurance that the hazard will be corrected or eliminated. Therefore, Respondent's license should be revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a Final Order finding that W.P. Dental Lab has violated Section 466.028(1)(v), and therefore, because of the severity of the conditions and the unlikelihood of the facility being able to be brought within compliance, revoking the Respondent's license. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of January, 1991. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4159 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 3, 5, 6 and 7 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in the first sentence of paragraph 1 of Respondent's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraph 4 of Respondent's Proposed Findings of Fact are immaterial. The facts contained in paragraphs 2, 8 and 9 of Respondent's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 William Buckhalt Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0750 Wendell Cook
Findings Of Fact The parties stipulated to certain facts as follows: Dr. Emory T. Cain is currently licensed as a dentist in Florida holding License No. 4260. Dr. Cain is subject to the juris- diction of the Florida State Board of Dentistry under Chapter 466, Florida Statutes, and the rules and regulations promulgated thereunder. Dr. Cain was served a copy of the Accusation filed by the Florida State Board of Dentistry and the Explanation of Rights and Election of Rights form in accordance with Chapters 120 and 466, Florida Statutes. Dr. Cain answered the allegations contained in the Accusation by indicating on the Election of Rights form that the alle- gations contained disputed issues of material fact and that he elected to have a formal hearing before a hearing officer appointed by the Division of Administrative Hearings. Dr. Cain does not wish to contest the allegations set forth in the Accusation and for the purposes of this hearing, said allegations shall be deemed as true. Additionally, there are further facts which are relevant to this proceeding. On or about October, 1975, Dr. Cain had in his employ, Ms. Charlotte Reavis, whose duties were to serve the normal function of a dental hygienist in the office. Ms. Reavis was not a dental hygienist and Dr. Cain was aware of this fact, having utilized Ms. Reavis as a dental assistant for some time prior to October, 1975. Ms. Reavis, in the performance of her duties, frequently scaled patients' teeth although she performed no deep scaling. The scaling included the re- moval of calculus deposits, accretions and stains from the exposed surfaces of the teeth and the gingival sulcus of patients. This practice continued from approximately October, 1975, until the date of receipt of the Accusation by Dr. Cain, except as noted below. This work was performed under the supervision and control of Dr. Cain who had knowledge of same and allowed sane to be per- formed in violation of Sections 466.02 and 466.24, Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. On or about November, 1975, Dr. Cain was notified by Harold Ritter, D.D.S. of Tallahassee, that there was some concern re- garding Dr. Cain's use of unauthorized per- sonnel to scale teeth in his office. Dr. Cain discussed this telephone conversation with his associate, Tom Delopez, D.D.S. and for approximately a month the manner in which Ms. Reavis performed her duties was altered. Also, Dr. Cain initiated efforts to locate a dental hygienist during this time. However, Ms. Reavis thereafter began scaling patients' teeth again. In January, 1976, Dr. Delopez initiated a discussion with Dr. Cain regarding the con- tinued use of Ms. Reavis to scale teeth. Dr. Delopez informed Dr. Cain that this practice was prohibited by law and expressed his opinion that it should be discontinued. Dr. Cain informed Dr. Delopez that Dr. Delopez could scale the teeth of the patients he treated but that Ms. Reavis would continue to clean and scale the teeth of other patients. After approximately one month, Ms. Reavis resumed scaling the teeth of patients treated by Dr. Delopez. Dr. Delopez's association with Dr. Cain terminated during September, 1976. On or about September, 1976, Carl Daffin, D.D.S. became employed by Dr. Cain as an associate. Dr. Cain did not disclose to Dr. Daffin that Ms. Reavis was not a dental hygienist and Ms. Reavis continued to perform the same duties, including the scaling of the teeth of patients, until Dr. Cain's receipt of the Accusation filed in this cause. The facts set forth above do show a vio- lation of Sections 466.02(4) and 466.24(e), Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. The Hearing Officer further finds: The Respondent Dr. Emory Cain enjoys a good reputation among his colleagues and among the medical community in Tallahassee. The consensus of the numerous witnesses produced by the Respondent is that Dr. Cain enjoys a high professional reputation. Dr. Cain also enjoys a reputation as an unselfish contributor to the civic well being of the community. There has been no complaint from the patients of the Respondent that the work done by Charlotte Reavis, a dental assistant employed by the Respondent, that Charlotte Reavis caused injury to a patient. The work done by a dental assistant and the training received by a dental assistant does not equal the work licensed to be done by a dental hygienist and does not equal the amount of training required of a dental hygienist. A deposition of Louis Pesce, D.D.S., taken on behalf of the Florida State Board of Dentistry was received and considered by the Hearing Officer subsequent to the hearing and depositions of Shelley Register, Jo Ann Barnes, and Elizabeth Barber taken at the incident of the Respondent Dr. Emory T. Cain were received subsequent to the hearing. The Respondent Dr. Cain made a minimum effort to find a dental hygienist to work in his office but was satisfied with the work done by the dental assistant, Charlotte Reavis, and continued to use her to perform a procedure lawfully relegated to a dental hygienist, that is the scaling of teeth. The proposed orders of the Petitioner and of the Respondent have been examined and considered in this Recommended Order.
Recommendation Suspend the license of Respondent Cain for a period not to exceed thirty (30) days. DONE and ORDERED this 30th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Michael Huey, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Felix A. Johnston, Jr., Esquire 1030 East Lafayette Street, Suite 112 Tallahassee, Florida 32301
Findings Of Fact Respondent, Leon L. Shore, was at all times material hereto a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001600. On or about December 19, 1985, respondent presented to Harvey Sogoloff a pharmacist licensed in the State of Florida, a prescription to be filled. The subject prescription was written by respondent, and prescribed Percodan for himself. Mr. Sogaloff duly filled the subject prescription. Percodan, whose active ingredient is Oxicodone Hydrochloride, a salt of oxicode, is a Schedule II narcotic drug, as defined by Section 893.03(2)(a), Florida Statutes (1985). At the time of the prescription was written, respondent maintained his primary place of practice at 4801 South University Drive, Davie, Florida. During the first week of September, 1986, respondent closed his practice at that location without notice to petitioner, and did not thereafter practice for several months. In January, 1987, respondent resumed his practice at a new location, without notice to petitioner. Respondent asserts, however, that 2-3 weeks after commencing such practice, he instructed one of the medical directors at the center to notify petitioner of his new address. There was no proof that such notice was given, but following the commencement of this case, respondent did notify the petitioner of his new address, and no untoward consequences were shown to have resulted from such delay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered placing respondent on probation for a period of one (1) year subject to such conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ORDERED this 21st day of January, 1988, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 2. & 8. Addressed in paragraphs 4 and 5. & 4. Addressed in paragraphs 2 and 3. 5-7 & 9. Rejected as not a finding of fact, or subordinate. Respondent's proposed findings of fact are addressed as follows: Not necessary to result reached. Not necessary to result reached. 3-9 & 12. Rejected as not a finding of fact, subordinate, or contrary to the result reached. 10 & 11. Addressed in paragraphs 4 and 5. COPIES FURNISHED: David G. Vinikoor, Esquire DAVID G. VINIKOOR, P.A. 420 S. E. Twelfth Street Fort Lauderdale, Florida 33316 Derk A. Young, Esquire 320 Southeast 9th Street Fort Lauderdale, Florida 33316 Mr. Rod Presnell Executive Director Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be resolved in this proceeding concerns whether the Department of Corrections, the employer and Respondent herein (Department, Respondent) engaged in a discriminatory employment action against the Petitioner by terminating her allegedly on account of her age.1/
Findings Of Fact The Petitioner was hired as a Correctional Officer at the Hernando Correctional Institution (HCI) on or about December 20, 1996. HCI houses youthful and adult female inmates. Inmate Gaspar Incident Lieutenant Laura Reed was the dayshift officer in charge at HCI on March 22, 2005. At that time, at approximately 12:09 p.m., she ordered Officer Donald Langdon to perform a security inspection of a holding cell area. Lt. Langdon entered through the building's exterior door which opens to a vestibule in a holding cell area. The vestibule has two other solid doors; the steel door leading to the holding cell area is located a few feet from the exterior door, and there is a door at the far end of the vestibule that leads to administrative offices. There is an officer's desk and storage lockers in the vestibule. The three holding cells are typically used at HCI to house disruptive inmates. Each is a 12-by-12 square with a 10- foot ceiling. The side walls are of cement and the front and back walls are constructed of bars that are covered by a clear wall of lexan, a material similar to Plexiglas. Officer Langdon checked to make sure that nothing in the cells was broken and he searched the cells for contraband. He filled out a form indicating nothing was broken in the first and third cells and that he had not found any contraband and notified Lt. Reed of his findings. He then left the holding cell area. At about 12:10 p.m. Lt. Reed asked Officer Donna Jaje to help escort inmate Anita Gaspar to the holding cell because she was being disorderly and "acting out." Thereafter, Lt. Reed and Office Jaje arrived at the holding cell area where they strip searched the inmate but found no contraband. During the strip search the inmate commented that she "was not going to stay on this earth." The inmate's comment concerned the two officers because it indicated that she might be considering injuring herself. The inmate was placed in the first holding cell and Reed ordered Officer Jaje to remain with the inmate until relieved. Officer Jaje maintained a constant vigil observation of the inmate, and Lt. Reed left to advise a psychological specialist concerning inmate Gaspar and her comment. The psychological specialist determined a few minutes later that the inmate might have the potential to injure herself and put her on a "one-to-one observation," which requires constant visual observation based upon a fear of suicide. Suicidal inmates are not common at HCI, thus when an inmate is determined to be suicidal, since the institution does not have appropriate facilities, the procedure is to maintain a constant visual observation of the inmate until the inmate can be transferred to Lowell Correctional Institution (Lowell CI). Lowell CI does have appropriate facilities for such inmates. The Petitioner was assigned to work as a medical officer on the day in question. Lt. Reed instructed the Petitioner to relive Officer Jaje at inmate Gaspar's holding cell and told her to stay with that inmate. Prior to the Petitioner's arrival, Officer Jaje had maintained constant visual contact with the inmate. When Petitioner Lawhorn arrived at the holding cell to relieve Officer Jaje, around 12:45 p.m., Lawhorn sat in a chair directly in front of the inmate's holding cell. Jaje told Lawhorn that the inmate was on SOS and gave Lawhorn the keys to the holding cell. Petitioner Lawhorn asked for the "observation form" and Officer Jaje went to the medical unit and returned with the observation form. When an inmate is on SOS status, an observation form must be completed at 15 minute intervals. The officer observing the inmate must document on the form all the inmates activities such as sitting, lying down, talking, eating, etc. Constant visual observation is a different procedure than that used for typical inmates being incarcerated in a holding cell for disciplinary reasons. In that instance the correctional officer is only required to check on the inmate and observe every 15 minutes. Because constant visual observations are not required between those 15-minute, checks the officer may then perform other duties. The Petitioner had been trained to know the difference between these two procedures. About 1:30 p.m. Officer Langdon escorted a different inmate to the holding cell area. He knocked on the exterior door and received no answer and tried the door which was unlocked, although it should have been locked. When he entered the vestibule, Petitioner Lawhorn opened the door to the holding cell area as if answering Langdon's knock, but then returned to the holding cell area. Langdon is a male officer and therefore cannot strip search a female prisoner. He requested assistance in carrying out the required strip search of the inmate he had escorted to the holding cell area, but received no response to his radio request. After waiting some ten minutes he apparently discussed the matter with Petitioner, not knowing that the Petitioner was assigned to maintain constant visual observation of Inmate Gaspar. The Petitioner volunteered to strip search the other inmate for him. Langdon suggested that she strip search that inmate in cell three while he kept an eye on the inmate in cell one. The Petitioner refused that request, apparently because the other inmate was not dressed. She closed the door between the vestibule where Langdon was and the holding cell area where she carried out the strip search. Several minutes later Lawhorn opened the door to the holding cell area and placed the inmate's property in a locker and then returned to the holding cell area. Officer Langdon then reported to the control room that the inmate he was charged with had been placed in the third holding cell and he left the area. At about 2:30 p.m. Lt. Moffitt was in his office located in the same building as the holding cell area. He heard yelling, screaming, and a commotion emanating from the holding cell area. He and Officer Holley went to the holding cell area to determine the cause of the disturbance. When Lt. Moffitt entered the vestibule area he observed the Petitioner sitting at the officer's desk. The solid steel door to the holding cell area was closed. As he passed the Petitioner he told her he thought that she was supposed to be watching inmate Gaspar. The Petitioner replied that she was watching the inmate. Lt. Moffitt opened the door to the holding cell area and talked to Inmate Gaspar. She told him that she did not want to be transported to Lowell CI and that she would resist being transported. As Moffitt left the holding cell area he directed the Petitioner to watch the inmate and the Petitioner placed a chair in front of the holding cell of Inmate Gaspar in order to watch her constantly. About 2:35 p.m. the Petitioner needed a restroom break. There was no telephone at the officer's desk in the vestibule. She therefore went to the laundry area and informed a Sergeant there that she needed a restroom break. A few minutes later Officer Black came and relieved the Petitioner. Officer Black maintained a constant visual observation of Inmate Gaspar until the Petitioner returned, about 20 minutes later. About 3:45 p.m., Lt. Moffitt returned to the holding cell area. The Petitioner was then complying with his instructions by sitting in the chair and watching Inmate Gaspar. The shift changed at 4:00 p.m. and Lt. Moffitt conferred with Lt. Oudshoff, the oncoming shift supervisor. Moffitt told Lt. Oudshoff that an inmate in the holding cell area had stated that she was going to resist being transferred that evening. He and Lt. Oudshoff went to talk with Inmate Gaspar and were able to convince her not to resist the transfer to Lowell CI. During the course of that conversation both Lt.s were surprised when inmate Gaspar offered to give them "her weapon," as she termed it, whereupon she produced a 5-by-7-inch piece of lexan. The inmate was apparently asked how she was able to obtain the piece of lexan while under direct supervision. The inmate purportedly replied that Petitioner Lawhorn had left the cell several times throughout the day, leaving her unsupervised. The inmate did not testify, (although her account is in documentary evidence) but whether or not her version of events concerning the Petitioner leaving the cell several times a day, giving her the opportunity to break off a piece of lexan, is true, it was demonstrated to have been the motivation for the disciplinary action taken against the Petitioner. The appropriate supervisors were informed of the details of this incident as Lt. Moffitt knew them and an investigation ensued. Ultimately, disciplinary action was determined to be appropriate and the Petitioner was terminated from employment with the Department based on this incident, as the culmination of other disciplinary incidents on the Petitioner's employment record. Officer Langdon was also disciplined concerning the incident. His discipline was lesser as he was accorded a reprimand and was not terminated. Officer Langdon is younger than the Petitioner but Officer Langdon also had no disciplinary incidents or entries on his employment record whatever until the subject incident. That was the reason he was accorded lesser discipline than that meted out to the Petitioner. Thus, although the discipline imposed upon the Petitioner and Langdon was disparate, Officer Langdon was not proven to be a similarly- situated employee because his discipline related to a previously unblemished disciplinary record and the Petitioner had had at least four other disciplinary incidents and disciplines imposed on her employment record, from 2003 forward. On December 23, 2004, the Petitioner was working in the medical department at HCI. She was the medical officer and responsible for ensuring that inmates arrived for their appointments on time and for monitoring inmates awaiting medication in the "pill line." She was issued keys when she arrived at work that day and on December 23 was issued key ring number 219. The Petitioner left her observation post at the pill line on that occasion in order to allow other inmates into a gate to the adult canteen. While the Petitioner was unlocking that gate, key ring 219 broke off her keychain which was attached to her belt and remained in the adult canteen gate lock. The Petitioner let those inmates through the gate and went back to her post. She was in a hurry because Nurse Barras, who was working in the medical department, was screaming at her. She became distracted and did not notice that the key ring remained hanging in the canteen gate lock. A few minutes later another correctional officer saw an inmate pulling the key ring out of the canteen gate lock. The Petitioner was not aware the key ring was missing until that officer confronted her with the keys that he confiscated from the inmate. In any event, the Petitioner was not paying sufficient attention to her duties in opening the lock to the adult canteen and allowed herself to become distracted by the nurse's behavior and thus negligently left her key ring in the lock. If she had been paying due care to her surroundings and to her duties, she would have been aware that the key ring had broken off the key chain on her belt and would have observed the inmate pulling the key ring out of the lock. The Petitioner was accorded a five- day suspension for this commission of negligence, an infraction of the Department's rules. That suspension was upheld by the Public Employees Relations Commission. An incident also occurred on March 28, 2005, which was taken into account in the decision to terminate the Petitioner. That incident involved an inmate who yelled at the Petitioner and who was therefore being counseled by the Petitioner. During the course of their conversation, the inmate "declared a psychological emergency," whereupon the Petitioner called on her radio for assistance. She then wrongfully allowed the inmate to leave her custody and control in the immediately area instead of handcuffing the inmate. She then failed to assist the other officer or officers who responded to her call for help in calming the inmate. This was a violation of Department rules and was a factor in her termination. In addition to the above disciplinary actions the Petitioner received a written reprimand for negligence on June 30, 2004. On May 7, and August 20, 2003, she received written reprimands for failure to follow oral or written instructions. On June 10, 2003, she received a written reprimand for failure to truthfully answer questions. In her charge of discrimination, and at hearing, the Petitioner contended that she was subjected to discrimination based upon her age. She did not adduce preponderant evidence, however, which would show that any person outside her protected group, as for instance, persons under 40, or persons younger than she, were treated any differently, discipline-wise or otherwise, while being similarly-situated, comparative employees. The only evidence in this regard that she adduced was to the effect that Officer Langdon, who is younger than the Petitioner, was subjected to lighter discipline. Officer Langdon, however, was not a similarly-situated employee because, although younger, his employment and disciplinary record was unblemished until the incident involving the processing of Inmate Gaspar in the holding cell area. He had been employed substantially longer than the Petitioner's nine years. Thus, although he was disciplined less severely, he was not shown to be a similarly-situated employee because of the disparate nature of his, versus the Petitioner's, employment disciplinary records. Aside from this incident involving Officer Langdon, no other preponderant evidenced was adduced that any other employees were treated differently or better based upon their age or that the Petitioner was treated in a worse manner because of her age. The Petitioner contends that she was subjected to disparate treatment and harassment based upon her age (and, at hearing, based upon her gender, although that was not plead in the Petition or in the Charge of Discrimination). This amounted to vague testimony to the effect that she was constantly harassed by her superiors, and subjected to unwarranted discipline, particularly by Lt. Moffitt after he became her supervisor. She attempted to advance this claim by testimony that her medical problems involving anxiety and chest pain began after Lt. Moffitt arrived at the facility in 2003. This is belied by the fact, however, that other evidence in the record shows that these medical complaints actually began in 1999, some years before Lt. Moffitt became employed at the facility and became the Petitioner's supervisor. There is no preponderant proof that the Petitioner was subjected to altered terms or conditions of employment based upon her gender, or due to any comments or conduct of a sexual nature. For instance, there is absolutely no evidence that any demands for sexual favors were made upon her and that her terms and conditions of employment were conditioned upon compliance therewith. Moreover, there was no preponderant evidence that she was treated in a different way, such as being exposed to more disciplinary actions or more severe disciplinary measures than were her male counter-parts. Her testimony that male employees were subjected to less severe discipline or no discipline was not persuasive. This is because, for the most part, they were not identified, and no evidence was adduced to show that they were truly similarly-situated male employees in terms of the positions they held, the circumstances of their employment and more particularly the circumstances surrounding their disciplinary actions, in terms of being disciplined based upon similar facts and circumstances. Moreover, the discipline meted out to them was not shown to be disparate in relation to that given the Petitioner because there was not showing by the Petitioner that their employment records and disciplinary records were otherwise similar to her. Rather, the only evidence concerning this is that Officer Langdale's employment disciplinary record was unblemished and therefore substantially different from the Petitioner's, when he was accorded less severe discipline than the Petitioner arising out of the same incident. His better record was the reason for the less severe discipline. Additionally, there is the Petitioner's uncorroborated testimony concerning an incident involving preparing an inmate for transport to another facility in the prison van. She firmly demanded that the inmate be re-buckled in a seat belt. A verbal altercation inferentially ensued with Sergeant Moynihan. The Petitioner claims he cussed at her and was not disciplined, while she was "written up" for allegedly calling him a liar. There was insufficient credible evidence to show enough facts concerning this event so that a judgment could be made if it occurred; whether the two employees were similarly-situated in terms of their conduct and their disciplinary records; and whether there was disparate treatment of one versus the other. There was no showing that the Petitioner was subjected to abusive language or other abuses related to her gender or to any sexually discriminatory motive in her working environment. There was no evidence of any unwelcome sexual harassment or other conduct of a sexual nature which was sufficiently severe or pervasive as to alter the terms and conditions of her employment and create a discriminatorily abusive working environment.2/ In summary, the above Findings of Fact do not reveal that any of the disciplinary action, including the termination at issue, was meted out by the Respondent Department for any discriminatory motives regarding the Petitioner's age or that of other employees. Moreover, complaints regarding gender discrimination were not made until the Petitioner's testimony at hearing. Therefore, under generally accepted principles of notice pleading and due process of law they can not be addressed and decided in this proceeding because the Respondent has not had an opportunity to prepare a defense against them. Parenthetically, however, the evidence adduced by the Petitioner does not demonstrate any discriminatory motive or action taken by the Respondent Employer based upon reasons of gender or of any sexual nature. There has been no showing that any comparative employees, male or female, were treated in a disparate way and more favorably than the Petitioner based upon their age. Moreover, even if such had been demonstrated, the Respondent has come forward with preponderant, persuasive evidence that the employment action at issue, the Petitioner's termination, occurred as a result of progressive discipline imposed in accordance with the Respondent's written policies and rules. It was imposed as a result of the Petitioner's deficient performance and her deficient and more extensive record of disciplinary actions imposed against her for her lapses in performance, as compared to other similarly-situated employees.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 30th day of May, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2007.
Findings Of Fact At all times material hereto, Respondent has been a medical doctor having been issued license number 0029773 by the State of Florida. At all times material hereto, Respondent was an employee of the Atlantic Stress and Obesity Clinic, Inc., located in North Miami Beach, Florida. While employed there, Respondent treated Daniel Wolfenstein, Cindy Vegazo, Neal Schoenberg, James F. McDonald, Scott Brown and Virginia Hagerty at the Clinic. On or about October 9, 1981, Respondent prescribed 45 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 893, Florida Statutes, for Daniel Wolfenstein. Respondent did not prescribe the above-described controlled substance to Daniel Wolfenstein for a medically justifiable purpose. That prescription was inappropriate and in an excessive or inappropriate quantity. Between the dates of approximately March 10, 1981, and February 8, 1982, Respondent prescribed 405 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 893, Florida Statutes, for Cindy Vegazo. Respondent did not prescribe the above-described controlled substance to Cindy Vegazo for a medically justifiable purpose. Those prescriptions were inappropriate and in excessive or inappropriate quantities. Between the dates of approximately October 9, 1981, and January 5, 1952, Respondent prescribed 90 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 593, Florida Statutes, for Neal Schoenberg. Respondent did not prescribe the above-described controlled substance to Neal Schoenberg for a medically justifiable purpose. Those prescriptions were inappropriate and in excessive or inappropriate quantities. Between the dates of approximately September 9, 1981, and January 22, 1952, Respondent prescribed 225 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 593, Florida Statutes, for James F. McDonald. Respondent did not prescribe the above-described controlled substance to James F. McDonald for a medically justifiable purpose. Those prescriptions were inappropriate and in excessive or inappropriate quantities. On or about October 13, 1981, Respondent prescribed 45 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 593, Florida Statutes, for Scott Brown. Respondent did not prescribe the above-described controlled substance to Scott Brown for a medically justifiable purpose. Said prescription was inappropriate and in excessive or inappropriate quantity. Between the dates of approximately August 4, 1981, and December 29, 1981, Respondent prescribed 135 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 893, Florida Statutes, for Virginia Hagerty. Respondent did not prescribe the above-described controlled substance to Virginia Hagerty for a medically justifiable purpose. Said prescriptions were inappropriate and in excessive or inappropriate quantities. The medical records of each of the above-listed patients indicate that each patient was given a prescription for 45 methaqualone tablets each time that patient came to the Atlantic Stress and Obesity Clinic to see Respondent. All patients indicated on the form checklist given to them at the Clinic that they were seeking medical aid because they were depressed, tense, unable to sleep, and/or without ambition. The progress notes for each patient are identical to the notes from prior visits, all progress notes appear in two different handwritings, and all patients are diagnosed as suffering from anxiety and insomnia, thereby requiring 45 more methaqualone tablets. There appears no variation in dosage or in diagnosis. Methaqualone is a depressant, and, therefore, prescribing methaqualone to depressed patients is contraindicted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I through XIX of the Administrative Complaint and permanently revoking Respondent's license to practice medicine in the State of Florida. DONE and RECOMMENDED this 27th day of July, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Adolfo Z. Aguila, Esquire Midway Professional Building 55 Grand Canal Drive, Suite 404 Miami, Florida 33144 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
